United States v. Elliott

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 14, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-8016 (D.C. Nos. 1:20-CV-00101-SWS & JOEL S. ELLIOTT, 1:15-CR-00042-SWS-1) (D. Wyo.) Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________

Before MORITZ, BALDOCK, and EID, Circuit Judges. _________________________________

Joel S. Elliott, appearing pro se, requests a Certificate of Appealability (“COA”) to

appeal the district court’s order denying his second or successive motion to vacate or set

aside his conviction and sentence under 28 U.S.C. § 2255. We liberally review Elliott’s

filings, see Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991), and for the

following reasons deny his request for a COA and deny his additional motions.

I.

In 2014, Elliott used gasoline and an incendiary device to set fire to a building

owned by Sheridan County, Wyoming, and used by the Sheridan County Attorney’s

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Office. As a result, Elliott was convicted of arson of a building owned or possessed by

an entity receiving federal funds, in violation of 18 U.S.C. § 844(f), and using a firearm

during and in relation to a crime of violence pursuant to 18 U.S.C. § 924(c). Elliott was

also convicted of possessing an unregistered firearm under 26 U.S.C. § 5861(d) and false

declaration before a Grand Jury under 18 U.S.C. § 1623(a). He was sentenced to 444

months of imprisonment.

Elliott appealed his conviction, raising issues regarding the government’s use of an

undercover informant and the building occupant’s receipt of federal funds. We affirmed.

United States v. Elliott, 684 F. App’x 685, 698 (10th Cir. 2017). Elliott then filed his first

§ 2255 motion, arguing that his trial counsel was ineffective under the Sixth Amendment

and that the government violated Brady v. Maryland, 373 U.S. 83 (1963). The district

court denied the motion, and we denied Elliott’s request for a COA to appeal that denial.

United States v. Elliott, 753 F. App’x 624, 626 (10th Cir. 2018).

Next, Elliott filed a Rule 60 motion, which the district court denied and declined to

reconsider. We determined that Elliott’s Rule 60 motion and motion to reconsider were

actually unauthorized second or successive § 2255 motions and remanded for the district

court to dismiss them for lack of jurisdiction. United States v. Elliott, 807 F. App’x 801,

804 (10th Cir. 2020). Elliott subsequently moved this court for authorization to file a

second or successive § 2255 motion based on United States v. Davis, 139 S. Ct. 2319

(2019), and other grounds. We authorized the motion but limited it to arguments based

on Davis.

2 The bulk of Elliott’s 444-month sentence was attributable to his § 924(c)

conviction, which required a mandatory 360-month sentence to run consecutively with

any other sentences. See 18 U.S.C. § 924(c)(l)(B)(ii), (D)(ii). And in Davis, the Supreme

Court declared § 924(c)(3)(B)—one of two clauses defining a “crime of violence”—void

for vagueness. 139 S. Ct. at 2324. Thus, we allowed Elliott to ask the district court

whether his arson conviction qualifies as a crime of violence under § 924(c)(3)(A)—the

clause that remained intact.

Though Elliott’s motion raised other issues, the district court addressed only the

authorized Davis question. The court held that, “[b]ecause Elliott’s predicate federal

felony—arson of a building owned or possessed by an entity receiving federal funds—

separately satisfies § 924(c)(3)’s elements clause definition for the term ‘crime of

violence,’ any Davis infirmity in [Elliott’s] conviction is harmless.” ROA Vol. IV at 159

(quotation omitted). As such, the court denied Elliott’s successive motion. It

subsequently denied Elliott’s motion to reconsider and denied him a COA. Elliott now

seeks a COA from this court.

II.

To obtain a COA, Elliott must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c). That requires Elliott to prove “that reasonable

jurists could debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). This

debatability standard “does not require a showing that the appeal will succeed,” Miller-El

3 v. Cockrell, 537 U.S. 322, 337 (2003), but “[a] prisoner seeking a COA must prove

something more than the absence of frivolity or the existence of mere good faith on his or

her part.” Id. at 338 (quotations omitted). “In evaluating whether an applicant has

satisfied this burden, we undertake a preliminary, though not definitive, consideration of

the [legal] framework applicable to each of the claims.” United States v. Parker, 720

F.3d 781, 785 (10th Cir. 2013) (quotations omitted).

At the time of Elliott’s offenses, 18 U.S.C. § 924(c) prohibited using or carrying a

firearm during or in relation to a crime of violence. A “crime of violence” is defined as a

federal offense that is a felony and:

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3). Subsection (A) is referred to as the “elements clause,” and

subsection (B) is referred to as the “residual clause.” In Davis, the Supreme Court

declared the residual clause void for vagueness. 139 S. Ct. at 2336. We have held that

Davis is retroactive on collateral review. United States v. Bowen, 936 F.3d 1091, 1098

(10th Cir. 2019). Thus, Elliott’s offense under 18 U.S.C. § 844(f)(1)—arson of a

building receiving federal funds—can serve as a predicate crime of violence only if it

satisfies the elements clause.

To determine whether Elliott’s arson conviction “has as an element the use,

attempted use, or threatened use of physical force against the person or property of

another,” § 924(c)(3)(A), “we apply the categorical approach,” Bowen, 936 F.3d at 1102.

4 “Under the categorical approach, we look ‘only to the fact of conviction and the statutory

definition of the prior offense, and do not generally consider the particular facts disclosed

by the record of conviction.’” Id. (quoting United States v. Serafin, 562 F.3d 1105,

1107–08 (10th Cir. 2009)).

The arson statute that served as the predicate offense for Elliott’s conviction under

§ 924(c) provides:

Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other personal or real property in whole or in part owned or possessed by, or leased to, the United States, or any department or agency thereof, or any institution or organization receiving Federal financial assistance, shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both.

18 U.S.C. § 844(f)(1).

The district court found “[t]here can be little doubt that arson in violation of

§ 844(f) is a crime of violence under § 924(c)’s elements clause.” ROA Vol. IV at 154.

In doing so, it cited several of our sister circuits, which have held that setting fire to

property is using physical force. See id. (citing United States v. Doggart, 947 F.3d 879,

887–88 (6th Cir. 2020) (holding explosives “generate force capable of causing . . .

damage to property,” and “because fire is itself a physical force that causes physical

damage too, the intentional setting of fire to . . . [buildings] necessarily has as an element

the use, attempted use, or threatened use of physical force.” (quotations and citations

omitted)); United States v. McGuire, 706 F.3d 1333, 1337 (11th Cir. 2013) (holding that

setting fire to an aircraft to damage or destroy it is “unmistakably violent” and qualifies

as a crime of violence under the elements clause); Mbea v. Gonzalez, 482 F.3d 276, 280

5 (4th Cir. 2007) (“Fire is itself a physical force. . . . When that destructive force is

maliciously set in motion by human hand for the purpose of burning a . . . structure, a

‘physical force’ is used ‘against the property of another.’”)).

In his petition for a COA, Elliott argues the district court erred by finding his

predicate offense satisfies the elements clause, which requires physical force against the

property of another, because the arson statute extends to “any building.” Elliott urges

that the “any building” language “potentially punishes an individual for damaging or

destroying one[’]s own property,” which would not satisfy the elements clause. Aplt. Br.

at 29.

Elliott is incorrect. A defendant can be convicted of his predicate offense only if

the building is “in whole or in part owned or possessed by, or leased to, the United States,

or any department or agency thereof, or any institution or organization receiving Federal

financial assistance.” 18 U.S.C. § 844(f)(1). It is self-evident that a criminal defendant

cannot be any of those entities. Thus, § 844(f)(1) necessarily has as an element physical

force “against the . . . property of another.” § 924(c)(3)(A). The district court’s decision

is not reasonably debatable, and we deny Elliott’s application for a COA and his motion

for certificate of probable cause.

We also deny Elliott’s request for counsel. To decide whether to request counsel,

we consider the nature of the factual issues, the complexity of the legal issues, the

litigant’s ability to present the claims, and the merits. Rucks v. Boergermann, 57 F.3d

978, 979 (10th Cir. 1995). Elliott has capably presented his claim, and the issues

involved are uncomplicated.

6 III.

For the foregoing reasons, we deny Elliott’s application for a COA and his motion

for certificate of probable cause and/or certificate of appealability. We deny as moot his

motion for production of documents. We further deny his motion for summary reversal

and decline to request counsel.

Entered for the Court

Allison H. Eid Circuit Judge